Preventive Detention, Suspected Terrorists, and War

More documents

Recommendations

Info

COLE FINAL 7/1/2009 12:43 AM 738 CALIFORNIA LAW REVIEW [Vol. 97:693 administration’s and the Obama administration’s. Neither Wilkinson nor the Israeli Supreme Court would permit detention of mere supporters of an enemy organization, much less detention of members or supporters of associated groups. And neither Judge Wilkinson nor the Israeli Supreme Court would permit detention based on membership alone. They both require some evidence of involvement in hostilities. This may seem odd, because under traditional laws of war, any member of the opposition armed forces may be detained, without any need to show that he has planned or engaged in harmful conduct, or contributed to the cycle of hostilities. Why do both the Israeli Supreme Court and Judge Wilkinson require more than membership The answer, I believe, lies in the difference between membership in a terrorist organization and being enlisted in an army. A terrorist organization is a political organization, not a military force. It may well have a military wing, but many “terrorist organizations” are multipurpose groups, and include members who never engage in violence. Hezbollah, for example, is a political organization with representation in the Lebanese national legislature. 206 Mere membership in such an organization should not be a ground for military detention, and under the Israeli law, it is not. Just as military detention would not be permissible simply because an individual was part of the German civil service, military detention should not be permitted simply because an individual is a member of a terrorist organization. A scheme of military detention predicated on the need to incapacitate the enemy’s combatants requires proof of more than mere membership in a “terrorist organization”; it requires proof of contribution to hostilities. At the same time, membership in a terrorist organization will often be more difficult to prove than membership in a fighting army. Terrorist organizations tend to operate clandestinely and members often disguise themselves among the general population. Thus, proof of formal membership— a prerequisite for detention under Judge Wilkinson’s definition, although not under the Israeli law—may be too high an evidentiary burden in some instances. Where the state can demonstrate that an individual directly participated in hostilities against the state and on behalf of the enemy, military detention may be justified even if the state cannot prove actual membership in the organization with which it is at war. In a traditional conflict, mercenaries and irregular forces may be detained, even if they are not members of the armed forces of the enemy or nationals of the enemy state. 207 So, too, an individual who is directly engaged in hostilities against the United States on 206. Thanassis Cambanis, Lebanese Presidential Selection Delayed by Deadlock, N.Y. Times, Sept. 26, 2007, at A8. 207. Civilians who actively participate in hostilities lose their status as protected civilians under the Geneva Conventions. Geneva Convention, supra note 29, at art. 3(1); Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 618 (1987).
COLE FINAL 7/1/2009 12:43 AM 2009] OUT OF THE SHADOWS 739 behalf of al Qaeda or the Taliban ought to be subject to military detention, even without proof that he is a formal member of either. As the Israeli Supreme Court emphasized, the focus of the inquiry, and the trigger for detention, should be the threat the individual poses to the state as part of an ongoing armed conflict. As we have seen, the Obama administration has tentatively maintained that it may detain not only members of al Qaeda, the Taliban, and associated forces, but also those who provide “substantial support” to those entities. The administration was deliberately vague about what “substantial support” means, but indicated that it should be interpreted consistently with law-of-war principles. If “substantial support” were limited to those individuals who directly support an entity’s hostilities against the United States by fighting with it, this definition might be consistent with the laws of war. For example, the laws of war say that an individual who was not a member of the German army, but fought alongside it, would be subject to detention. However, a wealthy German capitalist who ran several businesses that supported the army and paid substantial taxes would presumably not be subject to military detention, even though he might be said to have provided “substantial support” to the war effort through his private businesses and tax payments. It remains to be seen how “substantial support” will be construed, but if the Obama administration means it to be construed consistently with the laws of war, general support to an organization should not be sufficient to warrant detention absent direct engagement alongside the organization in military hostilities against the United States. 208 Finally, neither the Israeli Supreme Court nor Judge Wilkinson would restrict military detention to battlefield captures. This, too, seems appropriate. Detention should turn on whether an individual is a combatant and poses a risk of returning to battle, not on where he happened to be captured. 209 Moreover, in an asymmetric conflict with a terrorist group, the enemy will virtually always prefer attacking far from any battlefield, for the same tactical reasons that it generally takes up terrorism in the first place—it cannot possibly prevail on a traditional battlefield. 210 Therefore, limiting preventive detention to those 208. One district court has rejected the Obama administration’s contention that its detention authority extends to those who are not members of al Qaeda or the Taliban but have merely provided “substantial support.” Hamlily v. Obama, No. 05-0763, 2009 U.S. Dist. LEXIS 43249, *32-*36 (D.D.C. May 19, 2009). The court concluded that the laws of war permit detention of persons who are “part of” enemy forces, but not of persons who have financed or supported enemy forces. Id.; see also Gherebi v. Obama, No. 04-1164, 2009 U.S. Dist. Lexis 34649, *122 (D.D.C. April 22, 2009) (holding that detention authority based on “substantial support” was limited to persons “who were members of the enemy organization’s armed forces”). 209. Establishing that an individual is actually a combatant will often be more difficult when he is not captured on the battlefield, but assuming he meets the appropriate definition, the location of capture should not preclude military detention. 210. To be clear, I do not mean this explanation of why terrorists choose terrorist tactics as a justification of those tactics in any way. In my view, terrorist tactics are unjustifiable, period.
Page 1 and 2: Faculty Scholarship Georgetown Law
Page 3 and 4: COLE FINAL 7/1/2009 12:43 AM Out of
Page 5 and 6: COLE FINAL 7/1/2009 12:43 AM 2009]
Page 47: COLE FINAL 7/1/2009 12:43 AM 2009]

Preventive Detention, Suspected Terrorists, and War

Create successful ePaper yourself

Delete template?

Save as template?